1. ' This revision application is directed against the order of the Secretary to the Government of Sind, Home Department, upholding the order passed by the District Magistrate, Karachi and the Tribunal under the West Pakistan Control of Goondas Ordinance, 1959 (hereinafter called the Ordinance).
2. ' The facts leading to this revision application are that S. H.
3. 0., Preedy Police Station filed a complaint under section 5 read with section 13(m)(n)(y) of the Ordinance against the applicant on the allegation that he behaved riotously in public, caused fear and alarm to the public and made his livelihood by cheating, fraud and black-mailing.
4. ' Before the tribunal, prosecution examined 16 witnesses and after the evidence was completed on 25-3-1972 the case was fixed for orders. Thereafter, the case was adjourned from time to time till 2- 4-1973 when the District Magistrate and the Tribunal passed the order under section 13 of the Ordinance declaring the applicant as goonda and ordered him to execute a bond in the sum of Rs, 5,000 to be of good behaviour for two years and also furnish two sureties in the like amount. The tribunal also ordered the applicant not to enter, work or reside within the jurisdiction of the Preedy Police Station. The applicant being aggrieved filed an appeal before the Home Secretary, acting as an appellate authority under the Ordinance, which was dismissed on 20-3-1974. Hence this revision of application under section 19 of the Ordinance.
5. ' Mr. Azizullah Shaikh, the learned counsel for the applicant in support of the revision raised the following contentions:-
(1) That in the complaint the allegations against the applicant were of cheating, fraud and behaving riotously and causing fear and alarm in the public. The prosecution evidence, however, did not substantiate allegations made in the complaint.
(2) that out of above 6 points stated by the tribunal to have emerged from the evidence, five points have no relevancy to the allegations under section 1 3(m)(n)(y) or to any other clause of the section 13 and therefore, could not be legally taken into consideration by the tribunal in passing the impugned order. As to the remaining one point regarding the applicant charging money from hawkers and cabin holders on the promise of rehabilitating them and getting permission for them to hawk in certain areas, the learned counsel contended that the applicant was secretary of the Hawkers Union and was also a social worker and, therefore in order to fight the cause of the hawkers he indeed used to collect the money from them for the expenses incurred in litigation. In this connection he referred to the evidence of P. W. Habib Qureshi wherein the latter had admitted that the applicant had obtained stay order from a civil Court in the suit proceedings in respect of the area occupied by the hawkers. In any case, the learned counsel contended, it was no offence to charge money from the hawkers for the purpose of fighting litigation in Courts to protect their rights. Thus there was no legal evidence on record to form the basis of the order passed by the tribunal. In support of his contention he placed reliance on the case reported as Arif Yazdani v.
6. Sheikh Abdus Salam PLD 1957 Lah. 983 and referred to the following passage of the judgment :- `It is, therefore, clear that the decision of the Court must be based on legal grounds established by legal testimony. A Judge cannot hold a fact to be proved unless there is legal proof of it. Conjecture cannot take the place of proof. It is the duty of the Court to consider the relevant and admissible evidence and then to decide whether or not a particular fact has been proved from the evidence adduced in the case. If there is no evidence in support of the truth of a particular fact, can a Court hold it to be proved ? And if there is legal evidence on the record, can a Court in giving its decision just ignore it ? In either case, in my opinion the Court errs in law in the mode prescribed for the exercise of jurisdiction and acts illegally and with material irregularity, and such a case is covered by subsection 11) (c) of section 115 of the Code of Civil Procedure. It goes without saying that a Court will be acting irregularly and with material irregularity if to coming a conclusion a Court imports its own knowledge or shuts its eyes to the legal evidence on the record.
7. ' A Court is legally bound to apply its judicial mind to the evidence on the record and in arriving at a conclusion is required to be guided by well recognised judicial principles. If a Court acts arbitrarily or capriciously in determining a matter in utter disregard of the legal evidence on the record or goes out of its way to decide a point without any legal evidence in support of it, then it acts in the exercise of its jurisdiction illegally and with material irregularity and finding arrived at in such circumstances is open to revision by the High Court under section 115 of the Code of Civil Procedure.
(3) That the learned Tribunal had not even adverted to, much less taken into consideration, the fact that early all the witnesses examined by the prosecution were inimical to the applicant as shown by the resolution dated 9-8-1970, copy of which was brought on record through P. W. 16 Muhammad Younis, wherein all the witnesses had resolved to depose against the applicant and to harm him at any cost.
8. ' Mr. Usman Ghani, the learned Assistant Advocate-General, frankly conceded that out of the six points that had emerged from the evidence of the witnesses examined by the prosecution, five had indeed no relevancy to the grounds on which the applicant could be declared a goonda under the Ordinance. As to the remaining 6th point of the applicant charging money from the hawkers to fight their litigations in Court, the learned Assistant Advocate-General submitted that it had also no relevancy to the grounds for declaring a person goonda and that for these reasons he would not support the impugned order.
9. ' As submitted by the learned Assistant Advocate-General, the order of the tribunal indeed shows that the evidence brought on record to substantiate the allegations made in the complaint was mostly irrelevant. Out of six I points emerging from the evidence, as narrated by the tribunal, in its order, five were neither relevant to the allegations made in the complaint nor to the grounds on which the applicant could be declared a goonda under the Ordinance. As to the remaining ground of the applicant charging money from hawkers and cabin holders on the promise of rehabilitating them and getting permission for them to hawk in certain areas, no evidence has been brought to show that he charged the money but did no work for them. On the other hand, the evidence of P. W.
10. 1 Habib Qureshi itself shows that the applicant had indeed obtained stay order in favour of the hawkers in a suit filed against them. Also, the copy of the resolution shows that most of the witnesses had deposed against the applicant under instructions as shown by the following paragraphs of the resolution :- "It is true that your interest is also involved in the litigation between my brother and Ali Hussain pending in Court. You also know that whenever there arises a situation leading to the imposition of any tax or K. M. C. Rent, it is only my brother who protects you from every undue tax burden. But, you should never forget that so long as Ali Hussain shop exists within the precincts of this market he will never refrain from his activities against us leading to the imposition of income-tax and he will also communicate all our secret information to the Government. A clear example of this is already before you. When sometime back on your suggestion I collected the Pakistan Defence Fund, Ali Hussain informed the Government resulting in heavy loss sustained by us. It is this very wretched Ali Hussain who had thwarted our efforts to implead 55 persons as interveners in S. No, 1946/67 filed by Ali Hussain, against K. M. C., by filing a counter-affidavit in Court No, VIth Civil Judge. Not only this suit but we failed in getting an injunction in our S. No, filed in Court No, VI Civil Judge on behalf of 57 persons with full support of the K. M. C. And police and it was only due for this Ali Hussain who filed an affidavit in this case. We had succeeded in getting Ali Hussain's shop removed on 6th August, but as ill luck would have it, he succeeded in reserving the approach of Martial Law authorities who ordered the restoration of the shop. Mr. Sabri S. H.
11. 0., Preedy, also found himself helpless. Let us decide here that we have to leave no stone unturned until Ah Hussain is permanently removed from this market. My brother has also decided to kill Ali Hussain. All arrangements in this connection has e been finalised.
12. ' Really it is a matter of sorry that some of the members of our body did not give evidence according to our instructions. As every one of us knows, how frequently, freely and unrestrictedly, we tell lies in almost all the matters in our day-to-day life ; there will be nothing harmful if you depose against All Hussain. What I want to do against such members is to take stern action because they have failed to comply with the instructions of the association.
13. ' In this context the name of Zafaruddin is worth mentioning who has nicely followed the instructions of the Body, thus setting an example worthy of emulation. Our thanks are also due to those who have not disobeyed the instructions of Babu Badruddin. They are: Munna, Anwar, Natha, Abdul Rehman, Mumtaz, Abdul Ghani, Bachu, Muhammad Mobin, Latif, Noshe, Babu, Shaukat, Wahajuddin, Muhammad Idris, Chand Karim, Asrar Ahmad, Abdul Rauf, Sultan Shah, Sattar and many others. We are also extremely grateful to Mr. Ashiq Nawaz Sabri and Malik Sher Bahadur, expression is also to the S. H.
0. Present at the Preedy P. S. (Syed Abdur Rauf) and other police officers. Expression to Station House Officer of the Preedy Police Station and Risala Police Station, respectively, who extended every kind of help and cooperation in one or the other."
14. ' This resolution was passed before most of the witnesses, signatories to the resolution, gave evidence against the applicant before the tribunal.
15. There is, therefore, force in the contention of Mr. Azizullah Shaikh that in relying on the evidence which had no relevancy to the allegations levelled against the applicant, and by not appreciating the evidence according to the recognised judicial principles of appreciation of evidence, in that it ignored the resolution which showed admitted hostility between A the applicant and the witnesses deposing against him the tribunal had acted illegally and with material irregularity in exercise of its jurisdiction. The grievance of the learned counsel that although the evidence was completed on 25-3-1972 the impugned order was not passed till 2-4-1973, after one whole year, is also not unjustified.
16. ' For the aforesaid reasons and the fact that the learned Assistant Advocate-General has also not supported the impugned order, I allow this application and set aside the impugned order passed by the tribunal and upheld by the appellate authority.